A Theocratic Law System Is One in Which the Law Is Based on

In many civil law countries, pPP agreements are governed by their own administrative law. It is important to seek legal advice on the ground to see if these rules apply in a particular civil system. It is also important to note that in a civil jurisdiction, unless the contract provides that the parties have agreed to arbitration, the contract will be performed by the administrative courts. Some of the main administrative provisions applicable to delegated administrative arrangements are listed below. The operator is protected in certain circumstances by the right to maintain the “financial balance” of the contract. For example, if the contracting authority requires a unilateral amendment, it must also adapt the financial terms of the agreement so that the operator is not placed in a worse situation (for example, if the contracting authority requires higher service standards, it may also have to authorise a higher tariff). Among the particular doctrines that are part of the operator`s right to “financial equilibrium” in France, which have counterparties in other civil law countries, we can mention: it is also known as civil law, which is based on a very detailed set of laws organized into codes. These codes define what constitutes lawful conduct. The Code of Law or Civil Law has its roots in civil law and more than 80 countries around the world, including Germany, France, Japan, Russia, most of Europe, Latin America, China, Taiwan and South Korea, work with this civil law system. Courts rely on detailed written legal systems and not on the interpretation of tradition, precedents and customs. The courts in this system do not have much flexibility compared to the courts in the common law system.

Countries that follow a civil law system are usually those that were former French, Dutch, German, Spanish or Portuguese colonies or protectorates, including much of Central and South America. Most countries in Central and Eastern Europe and East Asia also follow a civil law structure. A common law system is less prescriptive than a civil law system. A government may therefore wish to include the protection of its citizens in specific legislation related to the planned infrastructure programme. For example, it may want to prohibit the service provider from interrupting the water or electricity supply to defaulting payers, or it may require that documents related to the transaction be disclosed in accordance with an access to information law. There may also be legal requirements that include equivalent tariff provisions in a contract when one party is in a much stronger negotiating position than the other. For more information, see Laws and Regulations. Code Law is based on a global system of written rules (codes) of law. Under the Code Act, the legal system is generally divided into three distinct codes: commerce, civil law and criminal law. The civil law system, also known as the codified legal system, is based on a detailed set of laws that form a code. The rules governing the conduct of commercial transactions are part of the Code. For an incomplete list of countries with common law and civil law systems, go to the world`s legal systems on Wikipedia Although Islamic jurists and scholars constantly debate the application of Islamic law to the modern world, their debates are only academic considerations.

However, to keep up with life`s progress, many Muslim countries have a mix of common law and civil law with Sharia law. The common law is based on tradition, past practices and legal precedents created by the courts through interpretations of statutes, legal statutes and previous decisions. The common law seeks “interpretation by previous decisions of higher courts interpreting the same laws or applying established and customary principles of law to a similar set of facts.” Summary of the differences between civil law and common law legal systems This system is based on religious teachings as enshrined in religious scripture. Islamic law, Sharia, is the most widespread religious legal system in the world today. It is based on morality and not on the commercial requirement of human behavior in all aspects of a person`s personal and social life. Islamic law is based on the Holy Book of Islam, the Qur`an and on the interpretation of the practices and statements of the Prophet Muhammad. Civil law is a codified legal system. It has its origin in Roman law.

The characteristics of a civil law system include: There is usually a written constitution based on certain codes (e.g. Civil Code, Codes of Company Law, Administrative Law, Tax Law and Constitutional Law), which enshrine fundamental rights and obligations. However, administrative law tends to be less codified, and administrative judges tend to behave more like common law judges; In some civil law systems, for example: in Germany, the writings of jurists have a considerable influence on the courts; courts specific to the underlying codes – therefore, there are generally separate constitutional, administrative and civil judicial systems that ensure and interpret the consistency of legislation and administrative acts with that specific code; This section examines the main features of each system and highlights areas of particular importance for PPP projects: countries that follow a common law system are generally those that were former British colonies or protectorates, including the United States. Common law systems offer greater flexibility to provide different types of collateral on assets – an important feature of PPP agreements that involve commercial financing such as BOT. They also have the concept of trusts, which make it possible to hold collateral from a trustee for lenders in a syndicated credit situation without the need for a formal transfer or re-registration of collateral on behalf of new lenders. Civil law has no such concept, so security rights usually have to be re-registered in the name of the new lender (including additional registration fees and notary fees). The France is introducing a fiduciary law that will address a number of these issues. However, in OHADA countries, requests to a notary public are necessary to formalize security interests.

A civil law system is generally more prescriptive than a common law system. However, a government will still have to consider whether a specific law is necessary to limit the scope of a particular restriction in order to allow for the success of an infrastructure project or whether it requires sector-specific legislation. For more information, see the “Legislation and Regulations” and “Organizing Government to Think PPP” sections. There are two main types of legal systems in the world, with most countries adopting characteristics of one or the other in their own legal systems, common law and civil law. The common law refers to the law developed by judges through decisions of similar courts and tribunals (so-called jurisprudence), rather than legislative laws or executive measures, and the corresponding legal systems based on previous jurisprudence. There are few provisions contained in a common law contract – so it is important to set out ALL the terms that govern the relationship between the parties to a contract in the contract itself. As a result, a contract is often longer than a contract in a civilian country. In most cases, the contractual relationship is governed by private law and the courts seized of these issues According to the French Tax Code (Article 1678 quarter), the gross clauses relating to the compensation of withholding taxes on interest do not bind the French tax administration if the debtor is a French company. § the act of the contracting authority goes beyond the scope of the contract (otherwise, the measure would only constitute a breach); and these doctrines strongly prohibit or restrict a target company and its subsidiaries from providing guarantees (upstream and cross-cutting) or guarantees in connection with the acquisition of the target company`s shares, which is particularly relevant for PPPs where the private sector involves a joint venture and/or privatisations. Other civil law countries such as ohada countries (Article 639 of the Uniform Law on Commercial Companies) and Algeria (Articles 715 to 60 of the Commercial Code) have similar concepts. A contract that takes up a substantive administrative principle and specifies exactly how it is to be applied will generally be effective.

But a modification or repeal of a principle of administrative law may or may not be legally possible – this should be reviewed. For example, it may not be possible to completely deprive a contracting authority of the possibility of unilaterally changing service standards. In France, the law annuls any attempt to derogate from the possibility for the contracting authority to unilaterally terminate a contract. Some civil law books also contain mandatory notice periods before the breach of contract, which cannot be avoided or cancelled. Unforeseeable and uncontrollable events that make the performance of the contract materially impossible release the operator from his obligations. For example, an exit from a chemical plant that causes permanent pollution of the only water source would be considered a case of force majeure. Natural phenomena such as hurricanes and droughts can also be considered force majeure. § the action of the contracting authority adversely affected the operator and was not foreseeable at the time of the conclusion of the contract; o Unforeseeability.